May 27, 2021

The Scheme 1: The Powell Memo

Mr. WHITEHOUSE. Madam President, there is a scheme afoot, a scheme I will be talking about in weeks ahead – a long-running, right-wing scheme to capture the Supreme Court.

Special interests are behind the scheme. They control it through dark money – hundreds of millions of dollars in anonymous hidden spending. We will dwell in later speeches on how the scheme operates. This first speech seeks its origins. The scheme is secret, and because of its secrecy, it is hard to know exactly where the story should begin.

The one place you could begin is with a corporate lawyer – the Virginian Lewis Powell. An authorized biography of Lewis Powell by his fellow Virginian, renowned UVA law professor John Jeffries, reveals Powell to be a tough and incisive lawyer, willing and able to make sharp, even harsh, decisions, but a man of courtly and decent matters, well-settled in the White male social and corporate elite of Richmond, VA. There he developed his legal and business career through the 1950s and 1960s.

A successful corporate law practice often entailed joining corporate boards. Richmond was a home to Big Tobacco, and Powell’s legal career led him on to Richmond’s tobacco and other corporate boards. Richmond was Virginia’s sibling rival to Charlottesville, which could boast of Thomas Jefferson’s nearby Monticello, his renowned University of Virginia, and all the cultural and academic vibrancy bubbling around that great university. Richmond was the working sibling, hosting the State’s capitol and its political offices and serving as its corporate center.

Powell was an ambitious Richmond corporate lawyer, and the turbulence of the 1960s was broadly distressing to America’s corporate elite. The civil rights movement disrupted Jim Crow across the South, drawing out and exposing to the Nation the racist violence that had long enforced the social and legal norm of segregation and upsetting America’s all- White corporate suites and boardrooms.

Anti-war protesters derided Dow Chemical Company’s manufacture of napalm and scorned the entire military-industrial complex. Women’s rights protesters challenged all-male corporate management structures. The environmental movement protested chemical leaks, toxic products, and the poisons belching from corporate smokestacks. Public health groups began linking the tobacco industry to deadly illnesses, and lead paint companies to brain damage in children.

Ralph Nader criticized America’s car companies for making automobiles that were “Unsafe at Any Speed” and causing carnage on America’s highways. America’s anxious corporate elite saw Congress respond with new and unwelcome laws and saw courts respond with big and unwelcome verdicts. Something had to be done.

Powell’s prominence in Virginia’s civic, legal, social, and corporate circles had brought him attention in Washington, DC. A new client of his, the Washington, DC-based U.S. Chamber of Commerce, asked Powell for his help. The Chamber commissioned from Powell a secret report, a strategic plan for reasserting corporate authority over the political arena.

The secret Powell report, titled “Attack on American Free Enterprise System,” was telling. It was telling, first, for the apocalyptic certainty of its tone. Powell’s opening sentence was: “No thoughtful person can question that the American system is under broad attack.” By that, he meant the American economic system, but that assertion was footnoted with the parallel assertion that – and I am quoting him again – “The American political system of democracy under the rule of law is also under attack.”

This was, Powell asserted, “quite new in [American history].” “Business and the enterprise system are in deep trouble,” he wrote, “and the hour is late.”

The secret Powell report was an alarm.

The report is populated with liberal bogeymen: the bombastic lawyer William Kunstler; the popular author of “The Greening of America,” Charles Reich; the consumer advocate Ralph Nader, whom Powell said there should be, and I am quoting here, “no hesitation to attack.” Against them, Powell set establishment defenders like columnist Stewart Alsop and conservative economist Milton Friedman. Powell cloaked the concerns of corporate America as concerns of “individual freedom,” a rhetorical framework for corporate political power that persists to this day.

The battle lines were drawn. Indeed, the language in the Powell report is the language of battle: “attack,” “frontal assault,” “rifle shots,” “warfare.” The recommendations are to end compromise and appeasement – his words: “compromise” and “appeasement”— to understand that, as he said, “the ultimate issue may be survival”— and he underlined the word “survival” in his report – and to call for “the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it.”

Well, for this, you had to have a plan, and the Powell plan was to go big. Here is what he said:

“Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.”

Powell recommended a propaganda effort staffed with scholars and speakers, a propaganda effort to which American business should devote “10 percent of its total advertising budget,’” including an effort to review and critique textbooks, especially in economics, political science, and sociology.

“National television networks should be monitored in the same way that textbooks should be kept under constant surveillance,” he said. Corporate America should aggressively insist on the right to be heard, on “equal time,” and corporate America should be ready to deploy, and I am quoting him here, “whatever degree of pressure — publicly and privately — may be necessary.” This would be “a long road,” Powell warned, “and not for the fainthearted.”

In his section entitled “The Neglected Political Arena,” Powell recommended using political influence to stem “the stampedes by politicians to support any legislation related to `consumerism’ or to the `environment.’” And, yes, Powell put the word “environment” in derogatory quote marks in the original.

“Political power,” Powell wrote, “is necessary; … [it] must be assiduously cultivated; and … when necessary … must be used aggressively and with determination.” He concluded that “it is essential [to] be far more aggressive than in the past,” with “no hesitation to attack,” “not the slightest hesitation to press vigorously in all political arenas,” and no “reluctance to penalize politically those who oppose” the corporate effort. In a nutshell, no holds barred.

And then came the section of the secret report that may have launched the scheme to capture the court. It is called “Neglected Opportunity in the Courts.” This section focused on what Powell called “exploiting judicial action.” He called it an “area of vast opportunity.”

He wrote: “Under our constitutional system, especially with an activist-minded Supreme Court” – I will intervene to say, of course, we have today, as a result of the scheme, the most activist-minded Supreme Court in American history, but back to his quote – “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

Powell urged that the Chamber of Commerce become the voice of American business in the courts, with a “highly competent staff of lawyers,” if “business is willing to provide the funds.’” He concludes: “The opportunity merits the necessary effort.” The secret report may well have been the single most consequential piece of writing that Lewis Powell ever did in a long career of consequential writings. The tone and content of the report actually explain a lot of decisions in his future career. Yet this secret report received no attention – not even a passing mention – in Professor Jeffries’ detailed, authoritative, and authorized Powell biography.

The secret Chamber report was not disclosed to the U.S. Senate in Senate confirmation proceedings when, shortly after delivering his secret report to the U.S. Chamber of Commerce, Lewis Powell was nominated to the U.S. Supreme Court by President Richard Nixon.

The secret report was dated August 23, 1971. Two months later, on October 22, Nixon nominated Powell to the Supreme Court. Lewis Powell was sworn in as an Associate Justice of the Supreme Court on January 7, 1972, less than 6 months after this secret report was delivered to the Chamber.

To be continued. I yield the floor.